Denying Ex-Prisoners Jobs Robs Both Applicant and Market of Needed Work – Part Three

The continuation of a four-part article about what appears to be the unfair treatment of men and women after being released from prison, often for non-substantial crime.

By BINYAMIN APPELBAUM Feb. 28, 2015 for The New York Times

Lucia Bone worries that background checks are getting a bad rap. Ms. Bone is the founder of a nonprofit called Sue Weaver Cause that urges employers — particularly those that send workers into homes — to check the backgrounds of new hires and to conduct regular checks on existing employees. She says that many companies are not being careful enough.

The nonprofit is named for her sister, Sue Weaver, who was raped and murdered in 2001 after she hired a local department store in Orlando, Fla., to clean the air ducts in her home. The two men sent to perform the work both had criminal records, but the store had not ensured that its subcontractor conducted a background check. A few months later, one of those workers returned, killed Ms. Weaver, then set her house on fire.

“I very strongly believe that everyone has the right to work, but not every job is right for everyone,” Ms. Bone said. “It is the employer’s responsibility to protect their business, their employees and their customers.”

The ready availability of criminal records databases has fueled the perception that it is irresponsible for employers to ignore available information. Local governments increasingly put criminal records online, and private companies like HireRight, Sterling BackCheck and LexisNexis Risk Solutions aggregate those records, offering almost instant results. In the early 1990s, less than half of companies routinely checked criminal histories. Now relatively few refrain.

“Criminal background screening is an important tool — nearly the only tool — that employers have to protect their customers, their employees and themselves from criminal behavior,” Todd McCracken, president of the National Small Business Association, testified before a congressional committee last year. Local, state and federal governments have embraced the same logic, writing background checks into professional licensing requirements and post-9/11 security regulations.

These policies affect a growing number of people. About 10 percent of nonincarcerated men had felony records in 2010, up from 4 percent in 1980, according to research led by the sociologists Sarah Shannon of the University of Georgia and Christopher Uggen of the University of Minnesota. The numbers are much higher among African-American men: About 25 percent of nonincarcerated black men had been convicted of a felony, up from 9 percent in 1980.

Christopher Uggen of the University of Minnesota. Credit Tim Gruber for The New York Times

The problem with criminal background checks, in Mr. Uggen’s view, is a lack of deliberation about what employers should be looking for. Some employers ask about convictions for felonies; some ask only about narrow categories of felony like violent crimes or sex crimes. Others ask about any arrest whatsoever. “We haven’t really figured out what a disqualifying offense should be for particular activities,” he said.

Mr. Uggen was himself arrested few times as a Minnesota teenager for fighting and other minor sins but, when he submitted his college application to the University of Wisconsin, he was not asked and he did not tell. Now a professor, he said that some of his own students were not able to escape the past so easily.

Colleges routinely ask applicants about criminal history. So do landlords.

“For somebody of my generation who had a brush with the law, they were able to quickly put it in the rearview mirror and move on,” said Mr. Uggen, who is 50. “Now I have graduate students who maybe 10 years ago they were convicted of a crime and for them to try to get an apartment, it’s a huge barrier.”

The quality of the information used in background checks is another cause for concern. One of the most common problems is that databases may include arrest records without any indication of whether a person was convicted.

In 2008, for example, the government began to check the backgrounds of 1.2 million workers at the nation’s ports. A law passed after the 9/11 terrorist attacks mandated the exclusion of anyone with a conviction in the last seven years, and 59,000 workers were excluded as a result. But 30,000 of those workers filed appeals arguing their records were inaccurate, and in 25,000 of those cases, a more careful examination found no evidence of a conviction, according to a subsequent review by the Government Accountability Office. That’s worth repeating: When the background check system identified a felon, it was wrong at least 42 percent of the time.

And the United States Equal Employment Opportunity Commission warned in 2012 that the systematic exclusion of people with criminal records was effectively a form of discrimination against black men, who were disproportionately affected. It has filed lawsuits charging such discrimination by companies including BMW, Dollar General and Pepsi.